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ACH PR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility discriminatory and in breach of the equality of arms but also because those who are unable or unwilling to use the services of an attorney will be deprived of their right to be heard by the Court. 137. It is clear that the prohibition under Rule 3 of the Supreme Court Rules 2000 has the effect of discriminating against those without the means or the willingness to avail themselves of the services of an attorney. And this conclusion holds irrespective of the fact that the Complainant was disbarred since the protection established under Article 3 applies to 'every individual'. If disbarment based on a lawful conviction and following a fair disciplinary action can indeed be justified and prohibit convicted attorneys from representing others in court36, it would be untenable to hold that such retrogradation should also prevent the same disbarred individuals from representing themselves as 'every individual'. This could have serious consequences in cases where the disbarred attorney does not have the necessary means or trust to have recourse to an admitted attorney. 138. Judges and administration officials should 'not act arbitrarily in enforcing laws'.37 There should consequently be no 'position of imbalance' 38 and the individual should have 'the same opportunity as his opponent to present his arguments by enjoying equal consideration in accordance with the procedural requirements and standards provided for by the law and which were applied by the same domestic court in respect of' the other party, as was held in Communication 302/05, Maftre Mamboleo M. Itundamilamba v Democratic Republic of the Congo.39 139. Equal protection of the law (article 3(2)) has been interpreted as meaning that 'no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or class of persons in like circumstances in their lives, liberty, property and in their pursuit of happiness'. 40 Thus, 'similarly situated persons must receive similar treatment under the law'.41 36 This question was determined in Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004, para . 41. 37 Communication 294/04, n30 above, para 96; Communication 323/06, n24 above, para. 9 38 Communication 302/05, Maitre Mamboleo M. Itundamilamba v Democratic Republic 2013, para 100. 39 As above, para 101. 4° Communication 323/06, n24 above, para 174; Communication 294/04, n30 above, par 41 Communication 294/04, n30 above, para 99. Page 32 of 45 Afr�nt! �\ Unoolt-� ,., l . .£ � -a. an � , ....--;;;-�. �ng1>1 � o African Commission on Hu 31 Bijilo Annex Layout, West � �Cog Phone: (220 ) 230 4361 F Email: au-banjul@africa- u nion.org https:/achpr.au.int/0 0 a

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Communication 459/13 - Devendranath Hurnam v. Mauritius

ACHPR Decision

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Type of Document

Decision

Keywords

Equality
Equality Before the Law
Functioning and Independence of the Judiciary
Right to be Heard before a Competent Court

Case Head Notes: The Complainant is a lawyer, who, in the midst of dealing with charges that were brought against him, wished to represent himself without the services of an attorney. The Respondent State denied this possibility. The Commission found a violation of Article 3 stating that the right to litigate one's own case is protected under the African Charter, and because, otherwise, those who are unable (because of financial or other reasons), or unwilling, to use the services of an attorney will be deprived of their right to be heard by the Court. The Commission also noted that the right to litigate in person is not refused to the representatives of the State, so to deny that right to the other party is unequal. The Commission found a violation of Article 7 stating that, given that the Complainant was refused the opportunity to present his case in front of the Supreme Court and the Judicial Committee, the Complainant was denied the opportunity to appeal to a competent national organ, and, therefore, denied the right to have his case heard. The Commission further states that no substance would be left to the right to defence if it meant that individuals, whose rights are infringed, can only pursue justice through the services of a third party. The Commission asserted that the right to be defended by counsel of their choice is an entitlement and not a requirement. The Commission found no violation of Article 26 stating that the Complainant submitted a series of allegations which could not be sufficiently substantiated and cannot be considered as solid evidence. They also state that they do not have a reason to conclude that the Respondent State has not allowed the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of human rights, as required by Article 26 of the Charter. The Commission requested the Respondent State to take all necessary measures to ensure the reopening of the proceedings, as requested by the Complainant, and to allow him to be self-represented if he desires. The Commission also requested the Respondent State to ensure that its laws and statutes, regarding access to courts, are in line with its obligations under the Charter and to provide the Complainant with financial compensation.

Country

Mauritius

Outcome: Decided on Merits

Year Decided: May 23, 2023

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 7.1: Right to be Heard
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 7.1.a: Right to Sue for Remedy before a Competent Tribunal
ACHPR 7.1.c: Right to Defence

Rights Not Violated (ACHPR Provisions)

ACHPR 26 : Duty to Guarantee Independence of Courts

Duration of Procedure

Sep 18, 2013 ~ May 23, 2023

Country Geolocation

Latitude: -20.348404

Longitude: 57.55215200000001

Country Geolocation (linked ACHPR Decision): Mauritius

Primary Documents

Devendranath Hurnam v Mauritius.pdf
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African Human Rights CLA 2.0

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Communication 459/13 - Devendranath Hurnam v. Mauritius

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